FL Court Affirms JCC's Finding of No Misrepresentation as to Claimant's "Outside" Income in Spite of Considerable Evidence to Contrary

Illustrating yet again the deference afforded a Judge of Compensation Claims when it comes to fact-finding, a Florida appellate court affirmed a JCC’s finding that an injured employee had not misrepresented her post-injury income for the purpose of obtaining workers’ compensation benefits in spite of evidence showing that a second employer had paid her wages during the relevant period [LSG Sky Chefs, Inc. v. Santaella, 2020 Fla. App. LEXIS 10334 (1st DCA July 20, 2020)]. The JCC found she had not knowingly misrepresented her earnings, based upon her credible testimony that all the work for the second job was performed by her husband and the paychecks were made out to her because he had no bank account.

Background

In September 2015, Claimant sustained a compensable workplace injury to her low back, and the employer/carrier (“E/C”) provided medical care, including back surgery. In March and May of 2019, Claimant filed petitions for benefits seeking additional medical care, including a second-opinion psychological consultation for a spinal cord stimulator. The E/C initially denied that Claimant was entitled to the requested psychological consultation, but later asserted that Claimant forfeited any and all benefits by misrepresenting her post-injury earnings and medical condition.

When deposed by the E/C in May 2018, Claimant testified that her husband began a job delivering car parts for ADL Delivery in November 2017, soon after her back surgery. She stated that her husband did all the work but admitted that the paychecks from the employment were issued in her name. She claimed this was because her husband does not have a bank account and declined to explain further. She acknowledged that she often rode with him when he worked and that she sometimes did the paperwork while sitting in the car.

Husband Had No Service Contract with Second “Employer”

She testified similarly in a second deposition that she applied for the delivery position because the company needed female drivers. When confronted with her deposition testimony that she applied for the job because her husband did not have a bank account, Claimant stated that was also true. At a third deposition, she indicated that she had reported her earnings to the IRS. Indeed, her 2017 and 2018 federal tax returns showed the ADL payments as her income from work as a self-employed driver. An ADL representative subsequently produced Claimant’s payroll and personnel records as well as her signed independent contractor driver agreement, driving history, automobile insurance declaration, and W-9 form. By contrast, ADL had no record of Claimant’s husband’s employment. At the final hearing, Claimant testified that she did not knowingly or intentionally give any false statements to obtain workers’ compensation benefits when she completed the DWC-19 forms, which represented that Claimant received no income from any other source. She explained that she did not list the ADL payments as earnings because her husband was doing the work.

JCC’s Findings

The JCC found Claimant “to be a credible witness, but a remarkably poor historian” [Opinion, p. 7]. The JCC also found her “to be sincere and that she testified to the best of her capacity” [Id.].

Appellate Court’s Decision

The appellate court noted that the JCC’s factual findings would be upheld if any evidence supported the JCC’s decision, regardless of whether there was other persuasive evidence, if accepted by the JCC, that might have supported a contrary ruling.

Referring to § 440.02(28), Fla. Stat., the court stressed that “wages” had two components: (1) they had to be earnedand (2) they had to be reported. The court said that simply reporting the ADL payments to the IRS did not necessarily mean Claimant earned them herself. Here, the JCC expressly found that Claimant had not performed sufficient work for ADL to establish the payments as earnings of her own. While the E/C argued that this too was error, since Claimant admitted in her May 2018 deposition that she had done some paperwork while waiting for her husband to make the deliveries. The court stressed, however, that Claimant did not sign the first DWC-19 form until October 2018. At the hearing, she testified that she stopped doing the paperwork at one point. The E/C did not ask when this occurred and presented no evidence showing that Claimant did any paperwork during the time period in question. As a result, competent, substantial evidence supported the JCC’s finding that Claimant had not earned the ADL payments.

Commentary

I’m sure the employer and carrier were left scratching their heads, wondering what else they could have shown in this case. Claimant had completed an application for work to be performed as an independent contractor with the delivery firm. She signed an independent contractor agreement with the delivery firm. She received income checks made out to her and apparently endorsed them and put the funds into her account. She accompanied her husband on most of the deliveries and, up to some point, completed the necessary paperwork for each delivery. The delivery company’s records showed no relationship with Claimant’s husband. Nevertheless, the JCC believed that her statements denying earnings were not made with intent to deceive. Again, once the fact-finder has made a determination, it’s an uphill battle.